Due to the importance that officers hold within the business organization, it is vital for the company that they act with good faith and loyalty, which is why Law 222 of 1995, in its Article 23, grants binding force to these principles and adopts them in its regulation.
Officers, being the legal representative, the liquidator, the factor, the members of boards or directorial councils, and those who, according to the bylaws, hold or exercise management functions, must observe these guiding principles in their conduct, understanding good faith as acting in a manner that satisfies the requirements and duties imposed by the company on the officer, and loyalty as the correct and positive conduct that allows the fulfillment of the corporate purpose of the company. From this, it follows that the actions of corporate officers must seek the satisfaction of corporate interests and not their own benefit, especially in the event of a contingency.
On the other hand, Article 23 of Law 222 of 1995 additionally stipulates that officers must act with the diligence of a good businessman in fulfilling the interests of the company. In this regard, the Constitutional Court, in Judgment 123 of 2006, recalled that this law sought to stabilize traditional liability models by changing the standard of acting as a "good father of a family" to that of a "good businessman," thereby establishing a higher degree of diligence than previously contemplated, due to the social implications that officers have.
The foregoing justifies the strict stipulations of Article 24 of Law 222 of 1995 in establishing the liability of officers, which is initially joint and unlimited for damages caused by fault or willful misconduct to the company, its partners, or third parties, and establishing a presumption of fault in the event of exceeding their functions or failing to comply with the duties incumbent upon them, whether by mandate of the law or by statutory constitution.
Now, according to the Superintendency of Companies, there are two available mechanisms to enforce the liability of officers. In principle, through the individual liability action, any person who is harmed by the actions of an officer has the right to sue him or her for the patrimonial detriment suffered. On the other hand, Article 25 of Law 222 of 1995 contemplates the social liability action, through which the action is directed against the company due to the damages caused to its assets as a result of the improper conduct of officers.
However, the respective sanctions and consequences framed within civil law are not exclusive of the appropriate criminal sanction derived from the improper conduct of officers.
Thus, with Law 222 of 1995, a strict code of conduct was imposed on corporate officers, which includes the requirement of loyalty and good faith, as well as the behavior of a good businessman in fulfilling the corporate purpose of the company, which implies that officers must act solely and exclusively in accordance with the corporate purpose, so that its interests are not held or harmed.